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Recent executive and administrative orders carrying-out COVID-19 mitigation and public safety measures will impact litigation within the Article 78 context, specifically the deadlines for commencing a proceeding to challenge municipal determinations. This impact is significant given the short statutes of limitations periods typical to land use litigation. Governor Andrew Cuomo’s Executive Order 202.8 (“Executive Order“) “temporarily suspends or modifies” various time-frames dictated by applicable statute, law, rule or regulation; in relevant part: “any specific time limit for the commencement, filing, or service of any legal action, notice, motion or other process or proceeding, as prescribed by the procedural laws of this state, including . . . the civil practice law and rules . . . is hereby tolled from the date of this executive order [March 20, 2020] until April 19, 2020,” i.e. 30 days.

Following the Executive Order, the Hon. Janet DiFiore, Chief Judge of the Court of Appeals, issued Administrative Order 78/20 (“Administrative Order“), which states that “no papers shall be accepted for filing by a county clerk or a court in any matter of a type not included on the list of essential matters attached.” An action or proceeding is commenced by the filing thereof, and challenges to land use and municipal determinations are not included on the list of essential matters.

Despite the present health crisis and preclusion of court filings in this subject area, municipal boards and agencies may have recently conducted business, and they may continue to conduct business via means that comply with the Open Meetings Law (as modified by Executive Order 202.1) and protect the public health. Thus, boards and agencies may have recently made, and can continue to make, decisions, but challengers are presently prohibited from pursuing judicial appeals of such decisions in the Courts. Analyzing the Executive Order will be critical to understanding the litigation risk from an applicant’s perspective, as well as how a challenger should anticipate dealing with any statute of limitations issues.

Interpreting the Executive Order’s Effects on Statutes of Limitations

The Executive Order is not without ambiguity; it uses verbiage such as “suspend” and “toll,” and each word may have different import.  For example, on the one hand, Black’s Law Dictionary defines “toll” as “to stop the running of; to abate.” Given the definition and the plethora of jurisprudence on the subject, this means that the statute of limitations period is paused for the duration of the tolling period. Put another way, the statute of limitations is extended for the same amount of time that tolling is in effect (because the period is not running during that time). On the other hand, “suspend” means “to interrupt; postpone; defer” or “to temporarily keep a person from exercising a right or privilege.” This could mean that any commencement deadline that falls between March 20th and April 19th will only be deferred until April 19th – and no additional time will be added. That said, “suspend” could also be interpreted to support a pausing or tolling of the time-period.

In addition, the Office of Court Administration issued a statement on its website noting the Executive Order “exten[ded]” statutes of limitation[s],” and the Administrative Order noted that the Executive Order “suspend[ed]” statutes of limitation[s].” This verbiage appears to support a broader interpretation to toll time-frames, as opposed to merely deferring to April 19th. In any event, applicants and litigants should be cautious and prudent, and seek to avoid any pitfalls based upon how the Executive Order is ultimately interpreted or applied.

Applying the Executive Order in the Article 78 Context – Assuming Statutes of Limitations are Tolled

The statute of limitations for challenging a zoning board’s determination is 30 days after the date of filing of that determination with the town or village clerk. The statute of limitations for commencing a proceeding to challenge many other board or agency determinations, e.g. environmental review, is fourth months from when it becomes final and binding. Assuming the Executive Order tolls and extends the statute of limitations, then any statute of limitations expiring during the tolling period is extended for 30 days.

For example, if a zoning board determination was issued and filed on March 1, 2020, then the statute of limitations would ordinarily expire on March 31, 2020. Applying the Executive Order’s tolling, the statute of limitations paused on March 20th, and does not begin to run again until April 19th. By adding 30-days (the tolling period) to what would have been the expiration date (March 31st), the new commencement deadline expires April 30, 2020.

The analysis for board or agency determinations filed and/or final after March 20th differs slightly. In this scenario, the tolling period is shorter because nothing is paused on March 20th; rather, the statute of limitations time-frame is paused on the date of filing and/or finality – when the claim for the challenge accrues. In other words, the tolling period is only the time between the filing and/or finality and April 19th.

For example, if a zoning board determination was issued and filed on March 30, 2020, then the tolling period is from March 30th (when the claim accrues) through April 19th – 20 days. Despite a shorter tolling period, the time to commence will be later because the statute of limitations period only begins to run on April 19th. Thus, an Article 78 proceeding to challenge a zoning board’s determination made and filed on March 30th must be commenced by May 19, 2020 (the full 30-day statute of limitations period, which starts to run on April 19th).

It should also be noted that CPLR Section 306-b plays a vital role in Article 78 litigation, and is also affected by the Executive Order. Section 306-b requires that, where the statute of limitations is four months or less, service of the pleadings shall be made not later than 15 days after the statute of limitations expires. The Executive Order’s impact upon statutes of limitations will have a concomitant affect upon the deadline imposed by Section 306-b.

The public health crisis created by COVID-19 has forced municipal officials statewide to cancel, suspend or postpone previously scheduled public hearings and meetings.  How do public bodies conduct their necessary business during these uncertain times?  Below is a brief analysis and summary of what options are available.

Background

On March 7, 2020, Governor Cuomo issued Executive Order Number 202 declaring a state of emergency for New York.  On March 13, 2020, Governor Cuomo amended this executive order and issued Executive Order Number 202.1 suspending, among other things, the “in-person” requirements of New York’s Open Meetings Law, contained in Article 7 of the Public Officers Law until April 11, 2020 (or unless further extended).  In pertinent part, Executive Order 202.1 states:

Suspension of law allowing the attendance of meetings telephonically or other similar service:

Article 7 of the Public Officers Law, to the extent necessary to permit any public body to meet and take such actions authorized by the law without permitting in public in-person access to meetings and authorizing such meetings to be held remotely by conference call or similar service, provided that the public has the ability to view or listen to such proceeding and that such meetings are recorded and later transcribed….(emphasis added)

As a result and to keep government operating, local public bodies are now authorized to conduct public meetings without allowing the public “in-person” access.

Three Options for Holding Public Meetings

Pursuant to Executive Order 202.1, public bodies, such as town boards, village boards of trustees, planning boards and zoning boards, now have three temporary options for conducting public meetings without allowing the public to be present at these meetings:

  1. Members of the public body are either physically present or participating via videoconferencing, and the general public is allowed to physically attend the meeting location(s) as is provided for under the Open Meetings Law;
  2. Members of the public body are physically present but the general public is not allowed to physically attend the meeting location; the public must be allowed to view or listen to such meetings and the public body must record and later transcribe such meetings; or
  3. Members of the public body meet via conference call or videoconference, with no in‐person location; the public must be allowed to listen to or view such meetings and the public body must record and later transcribe such meetings.

Analysis

Before discussing these options, it is important to distinguish public hearings from public meetings under New York’s Open Meetings Law.   Section 102(1) of New York’s Open Meeting Law defines a “meeting” as the convening of a public body for the purpose of conducting public business and requires that the “meetings” be open to the public.  It does not, however,  define “public hearing”.  Common practice dictates that a public hearing is a meeting of a public body, at which the public is provided the opportunity to comment.  In fact, many public hearings are required by law for matters, such as the adoption of local laws and for planning boards before they approve subdivision applications.

It has been held that the Open Meetings Law only requires that the meetings of public bodies be open for observation by the public, but does not require that the public be given opportunity to engage in debate.  See, DeSantis v City of Jamestown, 193 Misc.2d 197, [Supreme Court, Chautauqua County 2002].

The question then becomes, does an online video portal or teleconference that offers the opportunity for the public to comment satisfy the in-person requirement of the Open Meetings Law?  Unfortunately, there is no case law on the subject, but the following discussion can be used as a guide.

First Option:  Two-Way-Videoconferencing- Pubic Hearings and Public Meetings

The first option is not new.  In 2000, the Legislature specifically added “videoconferencing” to several provisions of the Open Meetings Law.  Open Meetings Law § 102(1) defines “meeting” as “the official convening of a public body for the purpose of conducting public business, including the use of video conferencing for attendance and participation by the members of the public body” (Open Meetings Law § 102(2)) (emphasis added), and does not distinguish between a “meeting” of a public body and a “hearing” conducted during such meeting.

Confirming that members of the public body need not all be physically in the same room with all members of the public during a board meeting, Open Meetings Law § 103(c) provides: “A public body that uses video conferencing to conduct its meetings shall provide an opportunity for the public to attend, listen and observe at any site at which a member participates” (emphasis added).  See, Peterson v Inc. Village of Saltaire, 77 AD3d 954 [2d Dept 2010].

In Peterson, the Appellate Division upheld a public meeting and hearing held by  the Mayor of the Village and four trustees in a conference room located within an office building in midtown Manhattan. The meeting was simultaneously broadcast by means of a two-way video conference hook-up to the main room on the first floor of the Village Hall.

Thus, participation in meetings by members of the board by electronic means was already permitted under the Open Meetings Law, as long as members and the public were able to be in two-way communication.  This option is not changed by Executive Order 202.1 and only requires that regular minutes be maintained, not a full transcript.  This may be the best options for public bodies with access to such technology.

Second Option:  Public Board Meetings Without the Public Present- May Not Be Applicable for Public Hearings

The second option is new.   Here, members of the public body are physically present in one location; however, there is no “in-person” attendance by the public at that location.  The public body meets together and conducts its business without the public present.  Provisions must be made to allow the public to listen or view the conference call meeting, and transcripts of the meeting must be made available.  This option allows the public body to physically meet, conduct its business while practicing social distancing and allowing the public to observe the meeting but not allowing any public comment.

This option appears best suited to allow public bodies to conduct public meetings for adopting budgets, entering into contracts etc., but does not appear to satisfy the requirements for conducting a public hearing.

Third Option:  Conference Call Public Board Meetings-Without the Public Present – May Not Be Applicable for Public Hearings

The third option is also new and the most socially distancing of all the options.  The public body meets via conference call or videoconferencing, with no in-person location.  The public must be allowed to listen to or view such meetings, and the public body must record and later transcribe such meetings.

This option provides the most fluidity and may best serve public bodies that need to address immediate issues without the need to convene at any one location.

Importantly, Executive Order 202.1 did not suspend any local laws governing public notices or public meetings.  Therefore, municipalities and boards that have adopted local laws establishing meeting protocols may need to relax local requirements.

Finally, Public Officers Law § 104 still requires public bodies to notify the public of the time and place of every meeting. The Open Meetings Law requires notice of every meeting to be:

  1. Conspicuously posted in one or more public locations;
  2. Given to the news media (television, radio and newspaper); and
  3. Conspicuously posted on the village’s website, if it has the ability to do so.

Conclusion

Open Meetings Law § 104(4) provides that if videoconferencing is used to conduct the meeting, the notice of the meeting must indicate that members of the public body will be participating via videoconferencing technology. Additionally, the notice must identify the locations from which the members will be participating and state that the public has the right to attend the meeting at any of the meeting locations.

Be well.

 

NOTE:  This blog post was updated on March 27, 2020 to reflect the new guidance that was issued by New York State Governor Cuomo’s office today relative to construction.

 

Despite the crippling impact that the coronavirus is having on all aspects of our daily lives, many developers are moving ahead with their projects, regardless of how far along they are in the development process.  However, the need to comply with the emergency executive orders issued by Governor Cuomo, and the general concerns for public safety, have made the land use and development process anything but business as usual.  For the time being, the ban on non-essential gatherings of all types has stalled the land use entitlement process for many projects because most local governments have postponed all public hearings.  Many municipal offices remain closed to the public, but building and planning department personnel are processing applications and issuing non-discretionary approvals, such as building permits and certificates of occupancy.

For those applications that require a public hearing prior to approval, local officials are struggling to find ways to comply with the statutory procedural requirements of the New York State Open Meetings Law and, at the same time, protect the public’s health, safety, and welfare.  This tension is illustrated by the Open Meetings Law’s requirement that all meetings of a public body be open to the general public and the Governor’s executive order banning public gatherings.  To address this conflict, Governor Cuomo issued an executive order on March 12, 2020, suspending the Open Meetings Law, to the extent necessary to permit any public body to meet and take such actions authorized by the law without allowing the public to be physically present at the meeting.  The order also authorizes public bodies to meet remotely by conference call or similar service.  A public body that prohibits in-person access to its meetings or conducts a meeting remotely by conference call or similar service, must provide the public the ability to view or listen to such meetings and must record and later transcribe such meetings.  Municipalities are currently assessing their technology resources in order to determine the public meeting format they will use during this crisis and are expected to begin holding public hearings in the coming weeks.

Approved projects that are already under construction are also not immune from the impacts of the pandemic.  Many projects have been impacted by the Governor’s “New York State on PAUSE” executive order, which mandated the closing of all non-essential businesses statewide and limited the concentration of individuals outside their homes, except in the case of workers providing essential services.

The guidance issued by the Governor on essential businesses under the executive order lists certain businesses and professions that are exempt from the order’s business closure mandate, including certain types of construction work.  Originally, only “skilled trades, such as electricians and plumbers” and “other related construction firms and professionals for essential infrastructure or for emergency repair and safety purposes” were listed as essential construction businesses  in the guidance.  This language prompted many questions from both developers and the construction trades who were uncertain whether their projects or work were essential.  However, as of March 27, 2020, updated guidance provides the following with respect to construction:

  • All non-essential construction must shut down except emergency construction, (e.g. a project necessary to protect health and safety of the occupants, or to continue a project if it would be unsafe to allow to remain undone until it is safe to shut the site).
  • Essential construction may continue and includes roads, bridges, transit facilities, utilities, hospitals or health care facilities, affordable housing, and homeless shelters. At every site, if essential or emergency non-essential construction, this includes maintaining social distance, including for purposes of elevators/meals/entry and exit. Sites that cannot maintain distance and safety best practices must close and enforcement will be provided by the state in coordination with the city/local governments. This will include fines of up to $10,000 per violation.
  • For purposes of this section construction work does not include a single worker, who is the sole employee/worker on a job site.

A recent Second Department decision, Matter of Village of Kiryas Joel v County of Orange, et al., addresses the intriguing justiciability doctrine of ripeness, as applied to judicial review of municipal administrative action.

In 2007, Orange County (the “County”) acquired property known as Camp LaGuardia from the New York City Economic Development Corporation.  Originally, the County’s plan was to designate the property for both residential and commercial use.  This would have required zoning changes from the Town of Chester and the neighboring Town of Blooming Grove.  However, the County eventually abandoned its plan for mixed-use development of the Camp LaGuardia property, instead deciding to develop an industrial park.

In 2016, the Town of Chester sought to amend its zoning code to rezone portions of the Camp LaGuardia property to industrial use, and it submitted a proposal to that effect to the Orange County Department of Planning.  At a public hearing on the proposal, the Petitioner, Village of Kiryas Joel (“Petitioner”), raised concerns about the detrimental impacts the rezoning could potentially have on affordable housing and the environment in the area.  Petitioner alleged that the Town’s review under the State Environmental Quality Review Act (“SEQRA”) was insufficient for many reasons.  In particular, Petitioner alleged that the Town’s environmental review was improperly segmented, meaning that the it failed to consider the impacts of the project as whole, throughout the entirety of property to be developed.  To accomplish this, according to Petitioner, would require “a coordinated environmental review by all municipalities involved,” rather than just the Town of Chester.

Despite Petitioner’s concerns, the Town of Chester voted to adopt the proposed rezoning law, permitting many uses not previously allowed, and now prohibiting all residential uses.  Petitioner brought an Article 78 action seeking, inter alia, annulment of the new zoning law, against not only the Town of Chester, but all involved municipalities, as well as their respective agencies and legislative bodies.  The additional respondents named were the County of Orange, the Orange County Department of Planning, the Orange County Legislature, the Orange County Sewer District No. 1 (collectively, the “County Respondents”); the Town of Chester Planning Board; the Town of Blooming Grove; and the Village of Chester.

Petitioner alleged various violations under SEQRA, as well as violations of state law and local town code provisions.  All respondents separately moved to dismiss Petitioner’s action on the grounds that it was not ripe for the court’s review.  The lower court granted the motions of all respondents, holding that Petitioner’s concerns about the impacts on the property were “wholly speculative” at the current stage.

Petitioner appealed that decision to the Second Department, which issued an interesting ruling.  The Second Department affirmed the lower court’s dismissal of the action as against the County Respondents, the Town of Chester Planning Board, the Town of Blooming Grove, and the Village of Chester, holding that “those respondents have not taken any action that may be reviewed.”  However, it reversed as to the Town of Chester.

The doctrine of ripeness is “‘designed “to prevent the courts . . . from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the parties”‘ (National Park Hospitality Assn. v Department of Interior, 538 US 803, 807-808, quoting Abbott Laboratories v Gardner, 387 US 136, 148-149).”  An administrative decision that is not final is not ripe for review.  Such a decision becomes final only when the agency has reach a “definitive position” on the issue to be decided and the aggrieved party has exhausted its administrative remedies (see Matter of Best Payphones, Inc. v Department of Info. Tech & Telecom. of City of N.Y., 5 NY3d 30, 34).

Applying that rule here, the Second Department found that because Town of Chester had completed the SEQRA process and formally enacted the proposed zoning law, the action was “complete and final” and could “not be ameliorated by any further administrative action.”  Thus, Petitioner’s challenge was ripe for the court’s review, but only as to the Town of Chester.

Takeaway:  When seeking judicial review of administrative decisions, litigators should keep this case in mind and remember that such review is appropriate only against those who have taken definitive and final action.

 

A popular topic on this blog is standing in the context of a challenge to a municipal determination, primarily under the State Environmental Quality Review Act.   A recent case issued by the Appellate Division, Second Department, entitled Matter of McCrory v Village of Mamaroneck Board of Trustees, involves standing in the context of a challenge to a municipal action under the Open Meetings Law (Article 7 of the Public Officers Law).

Here are the pertinent facts , based on the appellate court decision and news reports about the case.

Petitioners/Plaintiffs, (‘Petitioners”), Suzanne McCrory and Stuart Tiekert, reside in the Village of Mamaroneck and are self-appointed watchdogs of the Village’s municipal boards.  In March 2017, they receive an email notice about a general meeting of the Village Board of Trustees (“Village Board”) to be held the following morning. Petitioner McCrory attends the meeting, which starts with a motion to go into executive session for the purported reason to discuss contract negotiations and to confer with the Village Attorney.  After the executive session concludes, the public meeting reopens and the Village Board  indicates that while in executive session, they discussed hiring a new Village manager. In listening to the ensuing discussion, McCrory apparently concludes that the executive session included several other matters that should have been discussed in the public session but were not.

Petitioners bring a hybrid Article 78 proceeding/declaratory judgment action (“hybrid proceeding”) against the Village Board, complaining that the Village Board improperly went into a closed “executive session.”  Petitioners also contend that the Village Board has a pattern of holding improper executive sessions, fails to provide adequate notice and fails to accurately record minutes for these closed sessions.

The Village Board moved to dismiss the hybrid proceeding based on lack of standing, which motion was granted by the trial court. The appellate court unanimously reversed and reinstated the hybrid proceeding, finding that Petitioners have standing and remanding the matter back to the trial court for a decision on the merits.

The Appellate Division Decision

As noted in the decison, the purpose of the Open Meetings Law is to ensure that “public business be performed in an open and public manner” so that “citizens of this state [are] fully aware of and able to observe the performance of public officials and attend and listen to the deliberations and decisions that go into the making of public policy.  The people must be able to remain informed if they are to retain control over those who are their public servants.  It is only in this climate under which the commonweal will prosper and enable the governmental process to operate for the benefit of those who created.”  The appellate court noted that the provisions of the Open Meetings Law “are to be given broad and liberal construction. . .to achieve the purpose for which it was enacted.”

The appellate court further explained that Section 103 of the law requires “every meeting of a public body shall be open to the general public.” The statute permits a public body to go into closed executive session but only for specified reasons.  Sections 104 and 106 of the law require public notice of the time and place of a meeting and that minutes of an open meeting shall be taken and must be made available to the general public.

The appellate court noted that Section 107(1) of the law sets forth the criteria of who can bring a challenge for a violation of the Open Meetings Law.  That section provides that “[a]ny aggrieved person shall have standing to enforce the provisions of this article against a public body by commencement of [an Article 78] proceeding or an action for declaratory judgment and injunctive relief.”

The appellate court then explained who is an “aggrieved person” in order to bring an Open Meetings Law challenge to municipal action.  It first noted that the general rule for establishing standing to challenge governmental actions is that a petitioner must show it suffered an injury in fact and that the injury “falls within the zone of interests sought to be promoted or protected by the statutory provision under which the government has acted.”  As to the “injury in fact” criteria, the appellate court noted the challenging party has to have “an actual legal stake in the matter being adjudicated and has suffered a cognizable harm.” Thus, tenuous or conjectural harms are not sufficient to establish standing. Rather, the harm needs to be “sufficiently concrete and particularized to warrant judicial intervention.”

The appellate court then looked at other types of cases to explain “aggrievement.”  In the context of a tax certiorari proceeding, ” a person is aggrieved when an assessment has a direct adverse affect on the challenger’s pecuniary interests.”  In the context of an appeal, “an appellant may only seek review upon a showing that he or she is ‘aggrieved’ by a judgment or order,” which requires that the appellant show it asked for relief that was denied in whole or in part, or opposed relief sought against it, which relief was granted in whole or in part.

The appellate court then turned its attention to “aggrievement” in the context of a violation of the Open Meetings Law, noting that the case law is “sparse.”  In Matter of Sanna v Lindenhurst Bd. of Educ., 85 AD2d 157 [2d Dept. 1982], a dismissed probationary teacher brought a claim under the Open Meetings Law seeking to overturn the decision to fire her, which decision was made in an executive session followed by an open public meeting. The Court found she had standing under the Open Meetings Law due to her “membership in the class aggrieved by the board’s unintentional lapse in its decision-making process (i.e., the citizenry), and not from her status as the subject of those deliberations whose private employment interests are affected by the resulting determination.”  In Matter of Friends of the Pine Bush v Planning Bd. of the City of Albany, 71 AD2d 780 [3rd Dept. 1979], approval of two subdivision plats was challenged by an unincorporated association and five individual members, who reside in Albany, for failing to comply with the Open Meetings Law.  The trial court’s dismissal of the proceeding on lack of standing grounds was reversed by the Appellate Division, Third Department, which determined that the individual petitioners were aggrieved and had standing.  The appellate court also discussed Matter of Zehner v Board of Educ. of the Jordan-Elbridge Cent. School Dist., 29 Misc 3d 1206(A) [Sup. Ct. Onondaga County 2010].  In that case, petitioner, a member of the general public, a taxpayer in the district and an employee of the school district, was found to have standing because “he was in ‘the zone of interest’ that the Open Meeting Law was designed to protect.”  He also had attended the board meeting at which the public was excluded and “was a member of the citizenry aggrieved by the alleged violation.”

The appellate court then focused  on the trial court’s decision.  The lower court denied standing to petitioners McCrory and Tiekert and dismissed their hybrid proceeding, using the reasoning from land use cases that a petitioner “must show that it would suffer direct harm (i.e., injury in fact) that is in some way different from that of the public at large.”  In reversing that ruling, the appellate court noted that the matter involves a question of statutory interpretation.  The appellate court also noted that the harm or injury addressed by the Open Meetings Law is the “unlawful exclusion of the public from a municipal meeting” and that the Open Meetings Law “confers upon the public the right to attend certain meetings of public bodies.”  Thus, standing to challenge a violation of the Open Meetings Law requires that petitioner only establish it was excluded from a meeting that should have been open to the public.   The trial court’s use of a second criteria to establish standing,  that a petitioner must also suffer a personal harm or property injury in order to assert a claim for violations of the Open Meetings Law, was contrary to the Legislature’s intent in enacting the statute.

As a result, the trial court must now decide the matter on the merits.

 

 

 

 

 

 

 

 

 

 

When landowners oppose a project that involves the rezoning of a neighboring property, they almost always have the opportunity to air their grievances through a public hearing process. If the rezoning is approved over their objections, landowners can sometimes seek judicial review of the board’s decision through an Article 78 proceeding.[i] However, there is another tool available to landowners that can affect the course of a board’s process before it makes its final decision. That tool is the protest petition authorized in Town Law § 265 and Village Law § 7-708.

If the reviewing board receives a valid protest petition before it votes on a proposed rezoning measure, approving the application requires a supermajority instead of the usual simple majority vote. This heightened threshold for approval can be game-changing, particularly on contentious projects that do not have the full support of the reviewing board. In Dodson v Town Board of the Town of Rotterdam, Docket No. 528898 (Feb. 20, 2020) (“Opn”), the Third Department faced a novel question of law concerning the application of the protest petition in practice.

Town Law § 265

Town Law § 265 provides that a town board may amend its local zoning regulations, restrictions and boundaries by simply majority vote, except in cases where the amendment is the subject of written protest signed by “(a) the owners of [20%] or more of the area of land included in such proposed change; (b) the owners of [20%] or more of the area of land immediately adjacent to that land included in such proposed change, extending one hundred feet therefrom; or (c) the owners of [20%] or more of the area of land directly opposite thereto, extending one hundred feet from the street frontage of such opposite land.” Town Law § 265(1)(a)-(c) (McKinney’s) (emphasis added).[ii] Thus, the validity of a protest petition turns on the area of land collectively owned by the subscribing landowners, and not the number of landowners who sign. Consequently, a protest petition that garners several hundred signatures may still not be sufficient if the subscribing landowners, together, do not own enough land within the 100’ radius under the statute.

The question before the Court in Dodson was how the 100-foot radius around the rezoned land should be drawn for purposes of determining the “area of land,” and thereby, the landowners needed to sign the protest petition to the Town Board.

Dodson

In Dodson, the Respondent owned a 90-acre tract of agriculturally-zoned land, which it sought to develop into a senior living complex with health and other services for exclusive use by its residents. The Respondent made an application to the Town of Rotterdam Town Board (the “Town Board”) to rezone the majority of the property to senior living district (SLD), but excluded from the application a proposed 100-foot buffer designed to separate the rezoned area from the surrounding properties. Although the Respondent did not plan to rezone the buffer, it did propose certain improvements within it, including an emergency access driveway and emergency vehicle turnaround required under the NYS Uniform Fire Prevention and Building Code.

Before the Town Board could vote on the rezoning application, a collection of 90 landowners filed a protest petition pursuant to the Town Law. However, the Town Board rejected the petition as deficient based upon a finding that the landowners, collectively, owned only 10.22% of the lands immediately adjacent and none of the lands directly opposite, as measured from the edge of the rezoned area. The Town Board then went on to adopt a local law approving the partial rezoning of the property SLD. The landowners sued challenging the local law.

In their lawsuit, the plaintiff landowners claimed that the Town Board’s adoption of the local law was null and void because the Board adopted it by a simple majority vote when, according to the landowners, their petition had triggered the requirement for a supermajority. The landowners argued that the 100-foot radius should have been measured from the edge of the buffer, rather than from the edge of the rezoned area, because the buffer included improvements that were indispensable to the use of the rezoned area as SLD. Using that radius, the landowners owned more than 20% of the lands immediately adjacent to and opposite the Respondent’s project.

The issue reached the Third Department as an issue of first impression. The Court observed that, as a general matter, a property owner can protect their rezoning application from the supermajority requirement by creating a 100-foot buffer between their project (the rezoned area) and their property line. Opn at p. 6 (citing Matter of Eadie v Town Bd. Of Town of N. Greenbush, 7 NY3d 306 [2006]). The question was whether the construction of the improvements within the buffer negated the buffer’s insulating effect. Per the Court’s decision, the answer to that question turns upon whether the improvements are essential to the use of the rezoned area and whether they serve any other use or purpose outside of the project. After reviewing available case law within the State and at least two decisions rendered by courts in Illinois and Arizona, the Court ruled that 100-foot radius should have been measured from the edge of the buffer, not the rezoned area. The Court wrote:

Here, it does not appear that the SLD can be used for its intended purpose without the Keator Drive emergency access way in the buffer zone, as the road – located at a certain minimum distance from other access ways – is required by the New York State Fire Prevention and Building Code. Local Law No. 7 states that access ways and utilities located outside the rezoned area do not require rezoning because they “will continue to serve the existing golf course as well as the proposed new uses in the [SLD].” While it may be true that other access ways in the non-rezoned area have previously served the golf course, that does not appear to be true of Keator Drive, which is presently both private and impassable beyond the terminus of the Town road. Moreover, the project plans call for a gate that will block the emergency access way at the point of access; accordingly, it does not appear that the emergency access way will be available to provide access to the golf course – which, in any event, lies on the opposite side of the SLD – or to serve any purpose other than access to the SLD in emergencies. Likewise, the record does not reveal that the 30-foot-wide emergency turnaround, which will also be constructed in the buffer zone, serves any purpose other than use for the SLD.

Accordingly, the SLD cannot be used for its intended purpose without improvements in the buffer zone that will serve only uses in the SLD and will provide no public benefit. Under these circumstances, we do not find that the purported buffer zone is sufficient to defeat the supermajority requirements of Town Law § 265.

Opn at p. 9-10.

Based upon these findings, the Court reversed the lower court’s decision and declared the law invalid.

The Dodson decision adds a subtle nuance to the use of buffers as a means of avoiding the possibility of a supermajority requirement on a rezoning application. A developer who plans to use the buffer for any purpose associated with their project must consider whether that use would expand the 100-foot radius for purposes of a protest petition and potentially negate the protection of the buffer. Finally, although Dodson was decided based upon Town Law § 265, it is likely the Court’s holding would be readily applied to protest petitions under Village Law § 7-708 as well based upon the analogous language and purpose of the statutes.

If you have any questions concerning this post, please feel free to contact the author. A copy of the Fourth Department’s Opinion and Order can be accessed by clicking the following link: Dodson Decision.

[i] A neighboring landowners challenge of a rezoning decision will in most cases face certain threshold issues that, if decided against them, will bar judicial review of the decision on its merits. Common issues include whether the landowner has standing and whether the landowner commenced their proceeding timely, within the statute of limitations.

[ii] The Village Law contains an analogous provision, except that it requires a two-thirds supermajority vote of the board members in villages having three trustees, and a three-fourths supermajority vote of the board members in all other villages. See Village Law § 7-708 (McKinney’s).

The City of New Rochelle adopted an ordinance in 2017, amending the zoning code to apply a senior citizen overlay district to certain real property comprised of approximately 3.4 acres at 121 Mill Road in New Rochelle.  The City adopted a negative declaration pursuant to the New York State Environmental Quality Review Act for the amendment. The zoning code amendment allowed for the development of a 64-unit memory care facility for people with Alzheimer’s disease, dementia and other forms of memory loss, creating specialized housing for elderly residents. Petitioners challenged the adoption via an article 78 proceeding and declaratory judgment action. Petitioners alleged, in part, that the proposed assisted living complex was actually a medical care facility proposed to provide care and services to memory challenged senior citizens rather than senior housing.

The Supreme Court, in Matter of Vasser et al. v. City of New Rochelle et al, Anne E. Minihan, J., Index No. 57315-2017, Westchester County, dated September 14, 2017 dismissed the proceeding for lack of standing. The Court noted that petitioners live outside the 250 foot radius of property owners that are required to receive mailed hearing notices pursuant to the City Code. Additionally, the Court found petitioners’ concerns about noise, odor and traffic speculative, overbroad and unripe given that the proposed development was still subject to administrative review and approval before the Planning Board. The Supreme Court stated “petitioners’ arguments concerning standing merely based on proximity would essentially negate the element of a distinct injury, and such a strained interpretation of the requirement finds no support in the case law.” Petitioners appealed.

In Vasser v. City of New Rochelle, 2020 N.Y.Slip Op. 00868, Index No. 2017-11116, February 5, 2020, the Appellate Division, Second Department affirmed the Supreme Court’s determination. In its decision, the Court reiterated the law of standing as it relates to zoning amendments and land use decisions stating,

“Standing is, of course, a threshold requirement for a plaintiff seeking to challenge governmental action” (New York State Assn. of Nurse Anesthetists v. Novello, 2 N.Y.3d 207, 211, 778 N.Y.S.2d 123, 810 N.E.2d 405). The petitioner “has the burden of establishing both an injury-in-fact and that the asserted injury is within the zone of interests sought to be protected by the statute alleged to have been violated” (Matter of Association for a Better Long Is., Inc. v. New York State Dept. of Envtl. Conservation, 23 N.Y.3d 1, 6, 988 N.Y.S.2d 115, 11 N.E.3d 188). Additionally, in land use matters, the petitioner “ ‘must show that it would suffer direct harm, injury that is in some way different from that of the public at large’ ” (Matter of Sierra Club v. Village of Painted Post, 26 N.Y.3d 301, 310, 22 N.Y.S.3d 388, 43 N.E.3d 745, quoting Society of Plastics Indus. v. County of Suffolk, 77 N.Y.2d 761, 774, 570 N.Y.S.2d 778, 573 N.E.2d 1034). Allegations of harm must not be conclusory or speculative (see e.g. Matter of Panevan Corp. v. Town of Greenburgh, 144 A.D.3d 806, 808, 40 N.Y.S.3d 530).”

The Court found that petitioners’ residences were approximately 1,200 to 1,800 feet from the proposed development, not adjacent to the subject property but several streets and building lots away, separated by another housing complex. Additionally, the court determined that petitioners’ claims were speculative and unsubstantiated and failed to establish that they would suffer any direct injury-in-fact different in kind or degree from that experienced by the public at large.   Accordingly, the Court affirmed the Supreme Court’s determination to dismiss the proceeding for lack of standing.

New York’s “Bag Waste Reduction Act” and the regulations promulgated by the New York State Department of Environmental Conservation (NYSDEC) to enforce this law become effective on March 1, 2020. The law bans the distribution of plastic carryout bags, also referred to as film plastic bags, commonly associated with grocery stores.  The ban, however, is much broader than that. The law also includes several exemptions. Here’s a summary of some of the pertinent provisions.

First of all, the ban does not apply to shoppers. While shoppers are encouraged to switch to reusable bags, they can bring any type of bag into stores. Rather, the law bans the distribution of plastic carryout bags by anyone who is required to collect tax in New York State. In other words, stores that collect sales tax are banned from using plastic carryout bags for their customers’ purchases. The ban applies even if a particular transaction may be tax-exempt. The most common example is a grocery store that provides single-use plastic carryout bags to pack up groceries at the checkout counter. It also applies to clothing stores, home improvement stores and other retailers that are required to collect tax.

Certain bags are exempt from the ban. These include bags listed in ECL § 27-2801, as further refined in the newly finalized regulations found in 6 NYCRR Part 351. Exempt bags include those that are:

Used solely to contain or wrap uncooked meat, fish, seafood, poultry, other unwrapped or non-prepackaged food, flower, plant, or other item for the purpose of separating it from other items to prevent contamination, moisture damage, or for sanitary, public health or environmental protection reasons

Used by a customer solely to package items from bulk containers, such as fruits, vegetables, grains, candy, small hardware items (such as nuts, bolts and screws), live insects or fish or other aquatic items needing a waterproof bag

Used solely to contain food sliced or prepared to order

Used solely to contain newspapers for delivery to a subscriber

Sold in bulk to a consumer at the point of sale

Sold as trash bags

Sold as food storage bags, such as snack, sandwich, quart and gallon size bags

Used as garment bags, such as over-the-hanger bags or used by dry cleaners or laundry service

Plastic carryout bags provided by a restaurant, tavern or similar food service establishment

Provided by a pharmacy to carry prescription drugs

Reusable bags

A “reusable bag” is any bag (a) made of cloth or other machine washable fabric; or (b) other non-film plastic washable bag (such as a thicker plastic bag that can be washed). These bags must have at least one handle or strap that does not stretch, meet certain strength and durability standards, and have a minimum lifespan of 125 uses and the ability to carry at least 22 pounds for at least 175 feet.

Paper carryout bags may be made available by these stores and can be subject to a paper carryout bag reduction fee of 5 cents if this fee is adopted by a municipality. This paper carryout bag reduction fee, however, is not applicable to any customer using supplemental nutritional assistance program (SNAP) or women, infant and children (WIC) benefits as full or partial payment for the items purchased.

Any person required to collect tax who violates the law is subject to civil penalties. The first violation will result in a warning notice. If a violation occurs after the warning notice, a civil penalty of $50 will be imposed and any subsequent violation in the same calendar year will result in a $500 civil penalty.

The law also includes a pre-exemption provision that expressly provides that the state has exclusive jurisdiction of all matters pertaining to plastic carryout bags, thereby foreclosing a local municipality from imposing plastic carryout bag bans or other restrictions.

Some retailers covered by the law already have stopped using plastic carryout bags in their operations.  All of them must do so by March 1st.  Remember to “BYOB” – bring your own bag on your next shopping trip.

 

 

 

 

When determining whether a use is legally nonconforming for zoning purposes, the key consideration is whether the use was legal prior to the zoning restriction prohibiting it. A use cannot become legally nonconforming if it was not legal from the start, no matter how long it has existed. Consequently, the common assertion that something has “existed forever” or “always been that way” is not an absolute defense against a local enforcement proceeding seeking to abate a nonconforming use.

In Matter of Cradit v. Southold Town Zoning Board of Appeals (Docket No. 2017-04066, decided January 29, 2020),  the Appellate Division of the Second Department reviewed a local zoning board’s determination that the appellant’s use of a residence for short-term rentals was not a legal nonconforming use. In 2006, the appellant purchased a residence located in an R-40 zoning district in the Town of Southold. In 2014, she began operating the property as a place for short-term vacation rentals. In 2015, the Town amended its zoning ordinance to prohibit short term rentals, which the code defined as “transient rental properties.” The Town served the appellant with a notice of violation a short time later.

In response to the notice of violation, the appellant applied to the Town’s Zoning Board of Appeals claiming that her use of the residence for short term rentals was a legal nonconforming use and, therefore, protected from the Town’s 2015 zoning amendment. The Zoning Board, and the courts, disagreed. Adopting the Zoning Board’s reasoning, the Appellate Division concluded that the appellant’s use of the residence for short-term rentals was not a single-family use permitted under the applicable zoning prior to 2015. Rather, the appellant had converted the residence to something akin to a hotel or motel use, neither of which were ever permitted in the R-40 zoning district. Therefore, because the appellant was using her property in violation of the zoning ordinance prior to the 2015 zoning amendment, she was precluded from establishing it as a legal nonconforming use as a defense to the Town’s enforcement proceeding.

It is important to note that a use need not have been permitted as of right in order to be eligible for legal nonconforming status later. Again, the use must simply have been legally sanctioned prior to the later-in-time zoning restriction. Thus, a use which has received prior approval, whether pursuant to a special exception permit, conditional use permit, or even a use variance, can be become a legal nonconforming use as long as that prior approval is not lapsed or rescinded.

A copy of the Court’s Decision & Order can be read here: D61952

In Matter of Magid Setauket Assoc., LLC v The Town of Brookhaven Bd. of Zoning Appeals, the petitioners were the owner and the operator (“Petitioners”) of a Shell gas station located in the Old Setauket Historic District (the “Historic District”) Transition Zone, in the Town of Brookhaven (the “Town”).  Petitioners applied for an area variance to permit them to install a canopy extending over the gas pumps to protect patrons from inclement whether while filling up their tanks.  Petitioners’ proposed addition would have extended outward to 15.5 feet from the property line, where the Town Code required a minimum setback of 50 feet (see Town Code § 85-466 [C] [1]).  While Petitioners’ requested relief of nearly 70% relaxation from the Code was substantial, they pointed to prior examples where the Town Board of Zoning Appeals (the “BZA”) granted variances of similar or greater relief.

Residents, civic organizations, and various elected officials all opposed Petitioners’ application.  Public hearings were held in March and April of 2018, and the BZA formally denied Petitioners’ application in June of 2018.  Petitioners brought an Article 78 proceeding in July of 2018, seeking to annul the BZA’s denial of their area variance application.

The Court’s review here was limited, as it could annul the BZA’s denial only if it determined that the BZA “acted illegally or arbitrarily, or abused its discretion, or that it merely succumbed to generalized community pressure.”  Regarding the latter, it is worth noting that a local “zoning board may [still] consider community testimony . . . and may require that issues raised by such testimony be addressed by the applicant,” provided that it does not “merely succumb” to such generalized pressure.  Nonetheless, local zoning boards are afforded broad discretion in making such determinations.

Here, Petitioners accused the BZA of ignoring its own precedent, citing examples where it granted variances for similar and more drastic setbacks on prior unrelated applications.  Additionally, Petitioners argued, inter alia, that because the gas station was located within the Transition Zone of the Historic District, rather than the Historic District itself, it should be afforded less scrutiny.  In response, the BZA argued that granting Petitioners’ application actually would have been precedent-setting, as none of the prior examples cited by Petitioners involved properties located within an historic district transition zone.[1]  The BZA also argued that Petitioners’ “hardship was self-created” and more feasible alternatives existed.  The BZA found that the proposed canopy would adversely impact the historic character of the area and “would result in an undesirable change to . . . the community.”  This and other factors served as the grounds for the BZA’s denial.

Ultimately, the Court upheld the BZA’s determination, finding that there was a rational basis to support it.  Addressing Petitioners’ argument regarding the prior variance grants, the Court ruled that just because similar variances may have been granted in the past, that does not mean the denial here was “arbitrary or capricious”.  None of those prior examples referenced by Petitioners’ involved properties that were in or surrounding any historic district, and that was a significant distinguishing factor.  Further, a local “zoning board ‘may refuse to duplicate previous error [or] change its views as to what is for the [Town’s] best interests’ . . . (Matter of Cowan v Kern, 41 NY2d 591, 595 [1977]) . . . .”

Takeaway:  Local administrative bodies enjoy significant discretion in the enforcement of their own code.  Even where there may be precedent to support an application, just one distinguishing fact, or simply just the board’s change of views, can serve as grounds for the opposite determination, which a reviewing court is likely to uphold.  Property owners, and lawyers alike, must be aware of this and consider all possible scenarios when appearing before such boards.

[1] The purpose of an “Historic District Transitional Area”, as defined by the Town Code, is “to control the effect of potentially adverse environmental, visual and developmental influences on an historic district” (Town Code § 85-1 [B] [“Historic District Transitional Area”]).